Opinion
No. 1D20-3598
05-11-2022
Roosevelt KIRK, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Justin Foster Karpf, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Justin Foster Karpf, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
Ray, J. Roosevelt Kirk appeals an order resentencing him to life in prison under section 921.1401, Florida Statutes, for a first-degree murder he committed as a juvenile. He argues that (1) the findings in the resentencing court's order were not supported by competent, substantial evidence, and (2) the resentencing court abused its discretion by imposing a life sentence with judicial review after twenty-five years. We disagree and affirm.
The Underlying Proceedings
In 1983, Kirk was charged with first-degree murder and armed robbery. At the time, he was fifteen years old and his codefendant, Harry Glenn Gillespie, Jr., was eighteen years old. Kirk made several conflicting statements about how the offenses occurred. When the police first questioned Kirk, he denied any knowledge of the crimes. Then on the day of his arrest, he gave a recorded statement claiming that he went into the Junior Food Store to make a purchase. He argued with the victim, who was the cashier, because she gave him the wrong change. During the argument, she reached below the counter for something silver in her purse and he shot her twice. The day after Kirk's arrest, his story changed again. He told the investigator that he was playing video games at the Junior Food Store when Gillespie came in, robbed the victim, and shot her. Gillespie then gave him ten dollars and warned him not to talk about what he had seen.
Kirk ultimately pleaded guilty to both charges. In return for Kirk giving a sworn statement and testifying against Gillespie, the State promised not to seek the death penalty. Kirk would also be sentenced to life in prison with the possibility of parole after twenty-five years for the murder and a concurrent term of twenty-five years in prison for the robbery.
Consistent with his plea deal, Kirk was deposed. This time, he testified that he bumped into Gillespie at an arcade. Gillespie suggested robbing the Junior Food Store and Kirk agreed. The two then set out on the fifteen- to twenty-minute walk to the store. After walking around the store, they went to the counter. Kirk pointed his gun at the victim and demanded money. Gillespie pulled his gun as well. The victim handed the money to Gillespie, and Gillespie turned to leave. As Gillespie was walking out the door, Kirk shot the victim twice.
In September 1984, Kirk was sentenced to life in prison with the possibility of parole for murder and a concurrent term of twenty-five years in prison for robbery. He did not seek a direct appeal. A few months later, he was sentenced to five years in prison for escaping from custody during his sentencing hearing in this case.
Postconviction Proceedings
Kirk later filed several postconviction motions seeking to be resentenced pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that it is unconstitutional to sentence a juvenile who committed a homicide offense to a mandatory life sentence. In 2017, this Court reversed the denial of one of his postconviction motions based on Atwell v. State , 197 So. 3d 1040, 1041 (Fla. 2016), which held that a life sentence with the possibility of parole is unconstitutional under Miller . See Kirk v. State , 210 So. 3d 769, 769 (Fla. 1st DCA 2017). On remand, the postconviction court granted resentencing. In 2018, a resentencing hearing was held. Both sides submitted records, including Kirk's prior statements, a 1997 letter to the trial court arguing that Kirk should not serve more time than the "trigger man," a 2004 letter to the trial court proclaiming Kirk's innocence, and Department of Corrections (DOC) records related to Kirk's program participation, work history, and disciplinary record. The State presented testimony from the prosecutor, a representative from the Florida Commission on Offender Review (FCOR), an FCOR investigator, and four members of the victim's family. Kirk presented the testimony of his cousin-in-law, the founder of a faith-based recovery program, and a licensed psychologist who had interviewed him and reviewed various records from the proceedings and the DOC. Kirk also testified himself.
Kirk's resentencing hearing occurred before the Florida Supreme Court reconsidered Atwell in State v. Michel , 257 So. 3d 3 (Fla. 2018). See Franklin v. State , 258 So. 3d 1239, 1241 (Fla. 2018) (explaining that Atwell is no longer good law).
Kirk testified that the robbery and murder occurred while he and Gillespie were at the Junior Food Store playing video games. Gillespie suggested that they commit the robbery. Kirk claimed he refused at first but then relented to please Gillespie, whom he saw as an older mentor figure. He testified that Gillespie coerced him into shooting the victim. Even though Kirk acknowledged pulling the trigger, he was adamant that Gillespie told him to do so.
At the end of these proceedings, the court resentenced Kirk to life in prison with the possibility of parole and judicial review after twenty-five years. The court's twenty-nine-page resentencing order detailed the procedural history and testimony from the sentencing hearing, then spent nine pages applying the juvenile sentencing factors in section 921.1401(2) to the evidence. The court rejected Kirk's resentencing hearing testimony that Gillespie coerced him into shooting the victim, an assertion made for the first time thirty-five years after the offenses. Instead, the court credited Kirk's 1984 deposition, finding that while the robbery may have been Gillespie's idea, Kirk readily agreed and had a twenty-minute walk to reconsider his decision. The court determined that Kirk took an active role in the robbery, as he was the one who demanded money from the victim. It also concluded that the murder was Kirk's sole responsibility, as he shot the victim twice after she had cooperated and while Gillespie was leaving the store. The court acknowledged as mitigating circumstances Kirk's age, background, minimal criminal history, and potential for rehabilitation. Even so, it found those circumstances were outweighed by Kirk's street-savvy nature, his firsthand experience with the loss of life before the offenses, his unilateral decision to shoot the victim, and his unwillingness to accept full responsibility for his actions.
This timely appeal follows.
Analysis
In deciding whether life in prison is an appropriate sentence for a juvenile offender, the sentencing court must consider various factors pertinent to "the offense and the defendant's youth and attendant circumstances." § 921.1401(2), Fla. Stat. We review "the findings in the trial court's sentencing order to determine whether they are supported by competent substantial evidence [and its] ultimate sentencing decision based on these findings for an abuse of discretion." Jackson v. State , 276 So. 3d 73, 75 (Fla. 1st DCA 2019).
I.
In his first issue, Kirk raises several arguments purportedly challenging whether the resentencing court's order is supported by competent, substantial evidence. See Jackson , 276 So. 3d at 75 (explaining that in an appeal from a resentencing order addressing the factors in section 921.1401(2), a reviewing court should determine whether the trial court's findings are supported by competent, substantial evidence).
But upon close examination, some of these arguments improperly challenge how the resentencing court weighed the evidence. Kirk claims that the court disregarded his age, his intoxication, his below-average IQ, his below-grade-level academic functioning, Gillespie's influence over him, and expert testimony that his upbringing normalized violence. But all that evidence is thoroughly discussed in the resentencing order. The court also explicitly acknowledged Kirk's relationship with Gillespie, expert testimony about Kirk's susceptibility to peer pressure, and Gillespie's role in suggesting the robbery. Those factors simply were not enough to overcome findings that Kirk had learned to live independently in the streets, had no diagnosed mental health issues or deficiencies, and made the unilateral decision to shoot the victim twice while Gillespie was leaving the store. The court's findings were properly supported by competent, substantial evidence, and we will not reweigh that evidence. See Bell v. State , 313 So. 3d 1183, 1189 (Fla. 1st DCA 2021) ("There are many factors to be considered during juvenile resentencing, and it is the province of the sentencing court to determine how much weight should be given to each. We will not substitute our judgment for that of the sentencing court in determining this weight.") (citations omitted); Savage v. State , 120 So. 3d 619, 622 (Fla. 2d DCA 2013) (explaining that a reviewing court should defer to the trial court's superior position to judge the credibility of witnesses and evaluate and weigh the evidence).
As for his intoxication, although Kirk has given many reasons over the years for shooting the victim—going "blank," fearing the victim might harm him, or being coerced by Gillespie—he has never claimed that he was too intoxicated to understand the consequences of his actions. Indeed, at the resentencing hearing, Kirk did not blame his intoxication for the shooting but claimed that Gillespie directed him to do it. Nor did Kirk's expert attribute the shooting to intoxication. Rather, she acknowledged that at the time of the offenses, Kirk knew that shooting the victim was wrong. Cf. Gonzalez v. State , 50 So. 3d 633, 636 (Fla. 1st DCA 2010) (affirming defendant's sentence for a murder he committed as a juvenile and holding that his voluntary intoxication at the time did not entitle him to a lesser sentence), aff'd after resentencing , 252 So. 3d 1282 (Fla. 1st DCA 2018).
Other arguments raised in this issue misapprehend the significance of the resentencing court's findings. For instance, Kirk asserts that in finding he showed indifference to the victim's family, the court ignored evidence that Kirk could not contact the victim's family once he was in custody and was never given a chance to apologize. But this finding did not rest on Kirk's post-arrest failure to express remorse; it stemmed from his indifference at the time of the murder. Relying on Kirk's hearing testimony, the court found that Kirk had witnessed multiple murders and the suffering those murders caused before he decided to shoot the victim twice in the chest. These findings are supported by competent, substantial evidence.
Similarly, Kirk misunderstands the significance the resentencing court attached to the finding that he retrieved his mother's gun before committing his crimes. Kirk claims that the court misconstrued this as preparation for the robbery. But the court expressly found that Kirk retrieved the firearm before he met Gillespie and the robbery was Gillespie's idea. The order states:
While the initial decision to participate in the crime may have been impetuous,
[Kirk] had sufficient time to reflect on this decision during the twenty-minute walk to the store. Although the offense may not have been planned in explicit detail, the goal—to rob an unwitting store clerk at gunpoint—was clear from the subsequent actions of the perpetrators.
Thus, the court did not misconstrue the robbery as a preconceived plan that motivated Kirk to fetch the gun but characterized it as a spontaneous decision Kirk made after retrieving the firearm.
In his last set of arguments, Kirk essentially challenges the resentencing court's credibility determinations. He asserts that by finding that he failed to take responsibility for the murder, the court erroneously discounted his resentencing hearing testimony that he did not write the 2004 letter proclaiming his innocence. Kirk also claims that the reference to being punished more harshly than the "trigger man" in his 1997 letter did not mean that he did not pull the trigger. He further argues that he took full responsibility for the crimes, and it was "entirely consistent to say that the murder would not have happened" if Gillespie had not recruited him for the robbery. But the resentencing court was in the best position to evaluate the credibility of Kirk's testimony, and this Court will not second-guess that judgment. See Savage , 120 So. 3d at 622 ; see also Corbitt v. State , 220 So. 3d 446, 452 (Fla. 5th DCA 2016) (affirming a trial court's finding that the defendant failed to take responsibility for his actions even though he admitted shooting the victim, when he tried to mitigate his role by claiming his accomplice led him into the crime by persuading him to rob the victim). The record includes an abundance of competent, substantial evidence that even as recently as the resentencing hearing, Kirk failed to take full responsibility for shooting the victim. As a result, none of the arguments raised in his first issue provide a basis for reversal.
II.
In Kirk's second issue, he challenges the resentencing court's decision to impose a life sentence with judicial review after twenty-five years. A sentencing decision is reviewed for an abuse of discretion. Jackson , 276 So. 3d at 75. "Discretion is abused only when no reasonable person would take the view adopted by the trial court." Wilcox v. State , 143 So. 3d 359, 373 (Fla. 2014).
First, Kirk argues that the resentencing court failed to give due consideration to his youth, his expert's testimony, and his demonstration of maturity and rehabilitation during his incarceration. As discussed in connection with Issue I, the court considered all these factors. And although the court acknowledged evidence showing Kirk's potential for rehabilitation—including his program participation, his positive work evaluations, and his prison disciplinary history—rehabilitation is only one of ten non-exclusive factors to be considered during a resentencing hearing. See Calabrese v. State , 325 So. 3d 938, 942 (Fla. 5th DCA 2021) (affirming the reimposition of a life sentence despite defendant's "remarkable rehabilitation" during his prison sentence because that is only one of the statutory factors the sentencing court needed to consider); Bellay v. State , 277 So. 3d 605, 608–09 (Fla. 4th DCA 2019) (noting that rehabilitation is one of ten non-exclusive factors at issue during a Miller resentencing determination, and the key consideration at a sentencing review hearing).
Second, Kirk contests the resentencing court's determination that he did not take full responsibility for the murder. He frames this finding as attacking his failure to apologize to the victim's family. But the court based this finding on Kirk's attempts to diminish or deny responsibility both before and after his guilty plea. The court's decision was reasonable, considering Kirk's changing stories about who shot the victim; his letters to the trial court proclaiming his innocence; and his 2016 interview with an FCOR investigator, claiming he was merely present when Gillespie shot the victim and that a corrupt law enforcement officer forced him to confess. The resentencing court could properly consider Kirk's voluntary statements blaming others and refusing to take responsibility for his actions. See Davis v. State , 332 So. 3d 970, 978 (Fla. 2021) ("We hold that when a defendant voluntarily chooses to allocute at a sentencing hearing, the sentencing court is permitted to consider the defendant's freely offered statements, including those indicating a failure to accept responsibility.").
Next, Kirk argues that the resentencing court erred by finding that although he could appreciate the impact a loss of life could have, he still chose to murder another human being. Kirk claims that the court substituted its judgment for his expert's unrebutted opinion that he was predisposed to violence because of his traumatic childhood environment. But Kirk himself testified that because he had witnessed many murders while growing up on the streets, he knew the effect it would have on the family of the victim. And his expert also testified that he knew it was wrong to shoot the victim. Thus, there was evidence supporting the court's decision, and it did not abuse its discretion by concluding that Kirk was able to contemplate the significance of his actions. See Durousseau v. State , 55 So. 3d 543, 563 (Fla. 2010).
Finally, Kirk argues that the court abused its discretion by sentencing him to life in prison because his expert concluded that he was not one of the rare juveniles discussed in Miller who is so irretrievable that a life sentence is warranted. But Miller does not require a finding of permanent incorrigibility to support a sentence of life in prison with judicial review after twenty-five years. See Jones v. Mississippi , ––– U.S. ––––, 141 S. Ct. 1307, 1318–19, 209 L.Ed.2d 390 (2021) ; Sanders v. State , 318 So. 3d 605, 613 (Fla. 1st DCA 2021) ; Phillips v. State , 286 So. 3d 905, 910–11 (Fla. 1st DCA 2019). As discussed above, the resentencing court properly applied the principles of Miller within the framework of Florida's discretionary sentencing procedure. Under these circumstances, none of the arguments raised in Kirk's second issue provide a basis for reversal.
Conclusion
In sum, the resentencing court's order is supported by competent, substantial evidence. The court also duly considered all the evidence presented along with each of the juvenile sentencing factors. Finding no abuse of discretion, Kirk's sentence is affirmed.
AFFIRMED .
Roberts, J., concurs; Makar, J., concurs with opinion.
Makar, J., concurring.
I fully concur in Judge Ray's opinion. I note that the trial judge's nearly thirty-page single-spaced resentencing order thoroughly details the court's factual findings and exhaustively analyzes each of the statutory factors in light of caselaw developments thereby clearly explaining the basis for his decision and greatly assisting appellate review, all of which is commendable and to be emulated.